Harsh bail conditions rob liberty of prisoners from poor strata, say rights advocates

CHENNAI: After getting arrested for selling tobacco (gutka) on October 13, 2024, in her petty shop, leading to a confiscation of banned stuff worth Rs 1,500, a lower court in Tiruvallur district directed Kala (name changed) to execute a bond for Rs 15,000 with two sureties for bail. She was also asked to submit a photocopy of property documents.

Fortunately, she owns a house and her relatives came forward to stand as sureties for her to meet the bail condition. However, most of the undertrials, those remanded and convicts in prison are not as fortunate as Kala to fulfil bail conditions and continue to languish in prisons. "It is an unwritten rule in most of the lower courts to the HC to produce sureties, including those from blood relatives, and submit copies of property documents. In some courts, they ask for original documents such as the ration card, RC document of a two-wheeler, and even property documents to execute the bail bond," said advocate P Pugalenthi.

Another advocate, Sugmumar, said the court on occasion has directed the petitioners to produce government employees as sureties. What is a common thread among most of them affected by this requirement for bail is that they are from poor socio-economic backgrounds with no awareness of legal provisions. This is said to be one of the major reasons for the overcrowding of prisons.

There have been multiple High Court and Supreme Court directions to lower courts to adhere to the principle that "bail is the rule, and jail is the exception" in criminal jurisprudence. "Most inmates remain in prison because their families cannot meet the bail conditions, leading to extended stays behind bars. Many of them were those arrested for theft and other petty crimes, but remain incarcerated because they lack the social and financial capital to meet the bond conditions," said R Vaigai, an amicus curiae appointed by the Madras High Court.

Referring to the case of Radha (name changed), a life convict who was released 300 days after the HC granted her bail on November 15, a prison official described it as the "tip of the iceberg." The official said the court had even granted bail to migrants and foreigners but required them to produce blood relatives as sureties. "Foreigners arrested under the Passports Act face similar problems," the official added.

"There is no proper update on the status of cases in e-court. We can help the convicts obtain bail through the legal services only if there is proper communication," the official added.

In a case regarding the modification of anticipatory bail conditions in 2017, petitioner D Gopikrishnan challenged the lower court's bail conditions, which required him to "execute a bond for Rs 15,000 with two sureties who shall be blood-related, each for a like sum to the satisfaction of the said Magistrate." Justice P Devadass set aside these conditions, ruling that they violated Article 21 of the Constitution.

The judge's order cited several cases and legal provisions, stating, "When the accused executes a bail bond and the surety executes a surety bond, the court cannot insist on the production of property documents. The surety need not be a government servant, blood relative, or a local surety." The court should accept any one of the following 29 documents as proof of identity and address for the surety: passport, ration card, voter ID, electricity bill, and NREGS job card, after verifying their authenticity.

Retired Justice D Hariparanthaman criticised the existing judicial system, noting that the number of pending cases in the country has crossed 5 crore. This, he said, highlights how the criminal justice system has ‘failed’ and how most prisoners in jails across the nation are poor and marginalised individuals who cannot meet bail conditions, he added.

Lost in fine print

A prisoner is entitled to statutory bail if the prosecution fails to file a chargesheet in 90 days

Section 436A

If an under trial has spent 50% of the punishment period, he/she is entitled to be released without providing any surety

24,513 accommodation capacity in TN prisons

21,910 lodged in prisons (as of Nov 14)

70% of them under trials

24,897 accused in custody despite being granted bail across the country*

830 unter trials in jails even after obtaining bail orders in TN*

*According to reports submitted by HCs